SDVOSB Status Protest Case Study: Matter of MJL enterprises
Many of my clients express worry about an SBA SDVOSB status protest in the event they are awarded a contract before their CVE certification is complete. This recent ruling from the SBA OHA sheds some light on that issue.
In ruling in favor of respondent company on November 6, 2013, the SBA Office of Hearings and Appeals (OHA) ruled that a "[SDVOSB status] protest merely asserting that the protested concern is not an eligible SDVO SBC, without setting forth specific facts or allegations is insufficient." 13 C.F.R. § 125.25(b). The SBA also cited to the FAR which makes clear that an SDVOSB status protest, which makes bare assertions "without setting forth specific facts or allegations, are insufficient." FAR 19.307(c). MJL Enterprises, LLC, the appellant brought an SDVOSB status protest alleging that the apparent awardees of a government contract were not really SDVOSB companies. The contract in question was for electrical supplies for the U.S. Defense Logistics Agency (DLA). The apparent awardees, Gulf Geoexchange & Consulting Services, Inc. (Gulf), Janel's Industries, Inc. (Janel's), and SDV Recon, Inc. (SRI), were self-certified SDVOSB companies. In their SDVOSB status protest, MJL simply quoted a section of the FAR and asserted that the awardees had proffered no evidence of their SDVOSB eligibility besides their "self-serving representations." MJL further noted in its SDVOSB status protest that the three awardees were not found in the VetBiz database.
SBA's Director of Government Contracting (D/GC) dismissed the appellant's SDVOSB status protest as "insufficiently specific." In affirming the D/GC's opinion, the SBA OHA noted "appellant offered no evidence, information, or argument to support this contention. Accordingly, Appellant's [SDVOSB status] protests did not provide the D/GC with any basis upon which to commence an investigation of Gulf, Janel's, or SRI, and the D/GC correctly concluded that the protests were insufficiently specific. Matterof Veterans Contractors Group, at 3 (2013) (protest that "amounted to no more than bare assertions" was properly dismissed); Matter of One Step Ahead, at 4 (2009) (affirming dismissal of "unsupported and vague" protest because it merely requested an investigation of the challenged firm)."
Regarding MJL's assertion that the awardees were not registered in the VetBiz database, SBA OHA held "SBA's SDVO SBC program is a self-certification program, so Government officials are expected to rely upon offerors' representations absent some reason to question them. See generally 13 C.F.R. § 121.405; FAR 19.301-1. The SBA ALJ wrote further, "The VetBiz database is used to verify eligibility for VA procurements, but for non-VA procurements (such as found here)...[r]egistration on the VetBiz database, or receipt of any VA certification or registration is not an SDVO SBC eligibility requirement." Matter of Fidelis Design & Constr., LLC, SBA No. VET-221, at 4 (2011). Accordingly, whether or not a firm is registered in VetBiz is immaterial to determining eligibility for SBA's SDVO SBC program."
This SBA holding further supports the idea that firms seeking CVE certification should be doing so to further their chances of doing business with the VA. If your company is simply seeking to engage other government entities in the procurement process, self-certification through SAM.gov, will likely be enough. This, of course, will not prevent a disappointed bidder from bringing an SDVOSB status protest. However, the protest is not likely to succeed unless the appellant brings more than bare assertions. Upcoming posts will deal with agencies besides the VA hold place CVE certification into their RFPs.
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